Obtaining Reliable and Repeatable SSAG Calculations

Endnotes

  • [1] Carol Rogerson and Rollie Thompson, Spousal Support Advisory Guidelines (Ottawa: Department of Justice, 2008) (“SSAG”). Available on line at: /eng/pi/fcy-fea/spo-epo/g-ld/spag/index.html.

  • [2] Federal Child Support Guidelines, SOR/97-175, as amended by SOR/2007-59 (“CSG”).

  • [3] Issues about entitlement to support, the applicability of the Advisory Guidelines and the impact of prior agreements on the use of the Advisory Guidelines are discussed at SSAG §§3.2, 4, 5.

  • [4] Exceptions to the formulas and restructuring the formula results are discussed at SSAG §§3.4, 10, 12.

  • [5] The author would like to thank Professors Carol Rogerson and Rollie Thompson for their comments on this paper.

  • [6] For example, entering untaxed income as taxable income or employment income as self-employment income will lead to significantly different results. While all qualify as “income” for the purposes of the Advisory Guidelines, each is subject to different deduction and income tax rules which will influence the calculation of individual net income.

  • [7] The court made this pointed observation in Wetmore v. Wetmore, 2007 BCSC 117 at para. 69:

    Both counsel have provided a number of [spousal support] calculations, each using assumptions favouring their respective clients. Not all of the assumptions are valid and not all of the necessary data (e.g. child care costs and extraordinary expenses) have been inputted in each case, limiting the utility of the submitted calculations.

  • [8] Usually as defined by ss. 2(1) and (2) of the Divorce Act, R.S.C. 1985, c. 2 (2nd Supp.) (“ DA”), or otherwise by agreement.

  • [9] For example, the Universal Child Care Benefit is payable for all children under the age of six, while the child care expense deduction is only available for children under the age of sixteen, and the Canada Child Tax Benefit terminates when a child turns eighteen.

  • [10] In circumstances like these, it may be necessary to take into account post-separation increases in the payor’s income and any post-separation decreases in the recipient’s income. See the discussion at SSAG §§14.3, 14.4.

  • [11] Although use of the previous year’s income as reflected on the last tax return is common practice, the case law on CSG s. 2(3) is clear that current income information should be used whenever possible. Where a party’s present earnings are expected to generate an annual income significantly different than his or her income in the previous year, the party’s projected current annual income should be used. See Lee v. Lee (1998), 43 R.F.L. (4th) 339 (Nfld. C.A.); Lavergne v. Lavergne, (2007), 40 R.F.L. (6th) 239 (Alta. C.A.); Tauber v. Tauber (2001), 18 R.F.L. (5th) 384 (Ont. S.C.J.). See also SSAG §6.7.

  • [12] The tax calculations produced by the Advisory Guidelines software have not been approved by the Canada Revenue Agency. Tax calculations may be checked by performing the calculations manually. A child and family benefits calculator is available on line at http://www.cra-arc.gc.ca/bnfts/clcltr/menu-eng.html.

  • [13] See also CSG s. 19(1)(h).

  • [14] See also CSG s. 19(1)(h).

  • [15] See also CSG s. 18(2).

  • [16] See also CSG s. 19(2).

  • [17] Frerichs v. Frerichs, 1998 ABQB 216.

  • [18] Howe v. Tremblay (2007), 44 R.F.L. (6th) 140 (Ont. S.C.).

  • [19] This section does not apply to parties with incomes that increase over the relevant period, in which case the party’s most recent income should be used, see S.(K.K.) v. S.(C.S.), 2004 BCSC 26.

  • [20] Martel v. Martel, 2007 SKQB 227; Hanson v. Hanson, [1999] B.C.J. No. 2532 (S.C.).

  • [21] Shaw v. Shaw, (1997), 120 Man.R. (2d) 310 (Q.B.); M.C. v. V.Z., 1998 ABCA 410.

  • [22] Boston v. Boston, 2001 SCC 43; Lombardo v. Lombardo, 2007 BCSC 284.

  • [23] Orser v. Grant, [2000] O.J. No. 1669 (Ont. S.C.); Lavoie v. Wills, 2000 ABQB 1014.

  • [24] See for example Bak v. Dobell, 2007 ONCA 304; Strand v. Strand (1999), 58 R.F.L. (4th) 174 (Alta. Q.B.); Razavi v. Aavani, [1998] B.C.J. No. 1885 (S.C.); and, Braich v. Braich, [1997] B.C.J. No. 1764 (S.C.).

  • [25] Line numbers refer to line numbers in the T1 General Income Tax and Benefit Return.

  • [26] See the discussion at SSAG §6.3.

  • [27] Line numbers refer to line numbers in the T1 General Income Tax and Benefit Return. The amounts given are the amounts applicable for the 2008 tax year.

  • [28] In general, the party with the higher marginal tax rate should apply for these tax credits in order to maximize the family’s savings.

  • [29] Not all of the children’s expenses will qualify as special expenses within the meaning of CSG s. 7. The cost of non-qualifying expenses is presumed to be covered by the payment of the table amount of child support, see for example Raftus v. Raftus (1998), 37 R.F.L. (4th) 59 (N.S. C.A.) and Ostapchuk v. Ostapchuk (2003), 38 R.F.L. (5th) 172 (Ont. C.A.).

  • [30] Line numbers refer to line numbers in the T1 General Income Tax and Benefit Return. The amounts given are the amounts applicable for the 2008 tax year.

  • [31] Line numbers refer to line numbers in the T1 General Income Tax and Benefit Return. The amounts given are the amounts applicable for the 2008 tax year.

  • [32] Slightly different amounts are payable for residents of British Columbia, Nunavut and Quebec.

  • [33] See the discussion at SSAG §6.3 about the attribution of these benefits, and the discussion at SSAG §6.5 regarding benefits received in relation to children other than children of the marriage.

  • [34] The amounts given are the amounts applicable for the 2008 tax year.

  • [35] The CRA’s policy on the rotation of benefits is available at http://www.cra-arc.gc.ca/bnfts/fq_lgblty-eng.html.

  • [36] Not all of the children’s expenses will qualify as special expenses within the meaning of CSG s. 7. The cost of non-qualifying expenses is presumed to be covered by the payment of the table amount of child support, see for example Raftus v. Raftus (1998), 37 R.F.L. (4th) 59 (N.S. C.A.) and Ostapchuk v. Ostapchuk (2003), 38 R.F.L. (5th) 172 (Ont. C.A.).

  • [37] See Gaspers v. Gaspers, 2008 SKCA 94 for a recent appellate discussion of the test to determine whether an expense qualifies as a special expense.

  • [38] Contino v. Leonelli-Contino, 2005 SCC 63.

  • [39] DA, ss. 2(1), (2).

  • [40] DA, ss. 2(1), (2).

  • [41] Under the basic with child support formula, the full table amount of child support is deducted from the payor’s income while a notional table amount of child support is deducted from the recipient’s income. In circumstances of shared custody, each parent technically pays the full amount of child support to each other, with the higher income party usually paying a set-off amount, subject to the considerations described in Contino v. Leonelli-Contino, supra.

  • [42] This information is available from the CRA at http://www.cra-arc.gc.ca/tx/ndvdls/tpcs/ncm-tx/menu-eng.html. Line numbers refer to line numbers in the T1 General Income Tax and Benefit Return.